GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
WILLIAM MAXWELL RISK APPELLANT
AND
THE NORTHERN TERRITORY OF RESPONDENTS AUSTRALIA & ANOR
Risk v Northern Territory of Australia
[2002] HCA 23
30 May 2002 D12/2001
ORDER
Appeal dismissed with costs.
On appeal from the Federal Court of Australia
Representation:
J Basten QC with S A Glacken for the appellant (instructed by the Northern Land Council)
T I Pauling QC, Solicitor-General for the Northern Territory with R J Webb for the first respondent (instructed by the Solicitor for the Northern Territory)
No appearance for the second respondent
H Fraser QC with N J Henwood intervening on behalf of the Northern Territory Seafood Council Inc (instructed by Cridlands)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Risk v Northern Territory of Australia
Aboriginals – Land rights – Claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) to areas of the seabed of bays and gulfs within the limits of the Northern Territory – Whether the seabed of bays and gulfs amenable to claim – Whether "land in the Northern Territory" includes the seabed of bays or gulfs.
Words and phrases – "land" – "land in the Northern Territory".
GLEESON CJ, GAUDRON, KIRBY AND HAYNE JJ. The central question in this appeal is whether the seabed of bays or gulfs within the limits of the Northern Territory can be the subject of claim under the Aboriginal Land Rights (Northern Territory) Act1976 (Cth) ("the Land Rights Act"). This question was answered in the negative by an Aboriginal Land Commissioner (Olney J) and by the majority of the Full Court of the Federal Court of Australia[1] (French and Kiefel JJ; Merkel J dissenting). That answer was correct. The seabed of bays and gulfs within the limits of the Northern Territory cannot be subject to a claim under the Land Rights Act. That is not to say, however, that under the Native Title Act1993 (Cth) ("the NTA") a claim cannot be made to what that Act refers to as "land" or "waters" in that area[2]. Section 210 of the NTA provides that nothing in that Act affects the rights or interests of any person under, among other Acts, the Land Rights Act. Whether any claim made under the NTA would succeed is, of course, a question that was not debated in, and is not decided by, this appeal.
[2]Native Title Act1993 (Cth), ss 223 and 225 and the definitions of "land" and "waters" in s 253.
In May 1997, the Northern Land Council, on behalf of the appellant and others, applied under the Land Rights Act for determination of a claim. The application, to an Aboriginal Land Commissioner appointed under Pt V…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Risk v Northern Territory [2002] HCA 23
Case
[2002] HCA 23
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a claim brought by Risk, representing Aboriginal traditional owners, against the Northern Territory of Australia concerning rights to the seabed of bays and gulfs within the Northern Territory's territorial sea. The central dispute revolved around whether these areas of the seabed were capable of being claimed under the *Aboriginal Land Rights (Northern Territory) Act 1976* (Cth).
The primary legal issues before the Court were whether the seabed of bays and gulfs within the Northern Territory's jurisdiction constituted "land in the Northern Territory" for the purposes of the Act, and consequently, whether such areas were amenable to a claim for traditional ownership.
The Court reasoned that the definition of "land" in the *Aboriginal Land Rights (Northern Territory) Act 1976* (Cth) did not extend to the seabed of bays and gulfs. This interpretation was based on the ordinary meaning of "land" and the specific legislative context, which did not indicate an intention to include submerged areas within the scope of traditional land claims. The Court affirmed that the Act was intended to address claims over terrestrial areas and did not encompass the seabed of territorial waters.